Thursday round-up

EDITH ROBERTS MAY 7, 2020 6:58 AM

Amy Howe analyzes yesterday’s argument in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, a challenge to the government’s expansion of the “conscience exemption” to the Affordable Care Act’s birth-control mandate, for this blog, in a post that first appeared at Howe on the Court. At Fox News, Bill Mears and Ronn Blitzer report that “[a]t issue before the court Wednesday were challenges to Trump administration rules making it easier for some for-profit companies and religious-affiliated groups — including universities, hospitals, and charities — to opt out of providing contraception coverage to employees.”

Kevin Daley reports for The Washington Free Beacon that the court “seemed wary of Trump administration exemptions to the Obamacare birth control mandate in a marathon teleconference session that lasted over 90 minutes.” At Politico, Susannah Luthi reports that “Chief Justice John Roberts joined some of his liberal colleagues in questioning whether President Donald Trump’s rollback of the policy went too far[; h]e and other justices still seemed baffled over how to resolve a fierce dispute over religious freedom and health care access that’s persisted for years.” Nina Totenberg reports at NPR that “[t]he most outspoken justices in Wednesday’s argument were Justice Ruth Bader Ginsburg, who as a lawyer and justice has crusaded for women’s rights, and Justice Samuel Alito, who as a justice has been a vociferous advocate for religious rights.” Additional coverage comes from Ephrat Livni at Quartz, Mark Walsh at Education Week’s School Law Blog, Brent Kendall and Jess Bravin for The Wall Street Journal (subscription required) and David Savage for the Los Angeles Times, who reports that the telephone-conference format “appeared to lessen the ideological tone of the debate.” At Vox, Ian Millhiser observes that “[e]very member of the Supreme Court’s Republican majority has, in the past, expressed sympathy for religious objectors seeking exemptions from a generally applicable law[, b]ut each has also expressed a desire to limit federal agencies’ discretion to make policy[, a]nd on Wednesday, several of those conservative justices appeared to realize that these two goals are in tension — at least in the two Pennsylvania cases.”

Yesterday’s second argument was in Barr v. American Association of Political Consultants, a First Amendment challenge to a federal law banning cellphone robocalls. Jess Bravin reports for The Wall Street Journal (subscription required) that “[a] federal prohibition on robocalls to mobile phones looked safe after Supreme Court arguments Wednesday, as justices pushed back on claims that the First Amendment entitled political organizations to use automated dialers and recorded voices to reach unwilling audiences,” and that “[r]ather than expand the right to pester Americans wherever they might be with artificial voices and computerized dialers, the case could result in greater protection from unwanted interruptions by eliminating an exception to the law—one that, since 2015, has allowed robocalls for collecting debt owed to the U.S. government.” At The Atlantic, Garrett Epps observes that in this case, “advocates for ‘free speech’ … offer a good way for the Court to become the least popular institution in America: by making it decide that Americans have to live with unsolicited, repeated prerecorded calls—so-called robocalls—to their cellphones.” Additional commentary comes from Erica Goldberg at In a Crowded Theater and Michael Dorf at Dorf on Law.

According to Allan Smith at NBC News, the argument revealed that “it’s not just office co-workers who sometimes have difficulty finding the ‘mute’ button during a conference call.” Ariane de Vogue reports at CNN that “[a]cross the country, the public that has never before this week been able to listen in real time to oral arguments held remotely was treated not only to deep questions related to the First Amendment and robocalls but also to someone’s apparent bathroom break.”

Briefly:

• Greg Stohr reports at Bloomberg that the court yesterday “refused to lift Pennsylvania’s shutdown order, rejecting a request from businesses and a political campaign that said their constitutional rights were being violated.”
• At E&E News, Pamela King reports that “[a] looming Supreme Court showdown over water flows from the Pecos River may be the first in a rising swell of interstate water battles driven by climate change.”
• At Ammoland, Dave Workman remarks that “[o]nce again, the U.S. Supreme Court has essentially kicked the proverbial can down the road, not accepting while not rejecting any of ten potential Second Amendment cases that were part of the May 4 ‘Order List’of cases submitted for possible acceptance.”
• At Lexology, Bashar Malkawi writes that “[a]gainst the current trend we have seen over the past decades, copyright can and should be curtailed in some circumstances,” as it was in Georgia v. Public.Resource.Org Inc., in which the court held that Georgia is not entitled to copyright protection for its official annotated code [Disclosure: Arnold & Porter, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the respondent in this case.]
• At the U.S. Chamber Litigation Center, Aaron Streett observes that “the Court’s framework” County of Maui, Hawaii v. Hawaii Wildlife Fund, which held that a Clean Water Act permit is required for either a direct discharge of pollutants into navigable waters or its functional equivalent, “is flexible enough that EPA should have room to provide more concrete guidance to the regulated community, without running afoul of the Court’s authoritative construction of the statute.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the respondents in this case.]
• At Law360 (subscription required), Nancy Morawetz explains that “[b]ecause most issues in immigration litigation involve statutory interpretation, any U.S. Supreme Court case involving a statutory immigration provision has the potential for implications far beyond the narrow issue in the case”; she argues that “[t]he Supreme Court’s most recent statutory interpretation case, Barton v. Barr, “leaves litigators and courts in a muddle about what rules the Supreme Court will observe in immigration cases while dealing a devastating blow to lawful permanent residents challenging their deportations.”
• In an op-ed for The New York Times, Linda Greenhouse remarks that two cases to be argued next week that ask whether states can require presidential electors to vote for the choice of the state’s voters “present the court with a fascinating and ideologically fraught problem of constitutional interpretation.”

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